City of Seattle v. Stalsbroten

• Decision Date: 17 June 1999
• Docket Number: No. 66998-8,66998-8
• Citation: 138 Wn.2d 227,978 P.2d 1059
• Parties: CITY OF SEATTLE, Petitioner, v. Loyd STALSBROTEN, Respondent.
• Court: Washington Supreme Court

Page 1059

138 Wn.2d 227

978 P.2d 1059

CITY OF SEATTLE, Petitioner, v. Loyd STALSBROTEN, Respondent.

No. 66998-8.

Supreme Court of Washington,

En Banc.

Argued March 9, 1999.

Decided June 17, 1999.

Adam Eisenberg, Seattle Law Dept. Crim. Div., Seattle, for Petitioner.

Gene M. Grantham, Seattle, for Respondent.

DURHAM, J.

This case presents the question of whether it is constitutionally permissible for a trial court to admit evidence that a drunk driving defendant refused to perform field sobriety tests. Specifically, we must determine whether admitting such evidence violates the defendant's Fifth Amendment right against self-incrimination. Because we conclude that a defendant's refusal to perform a field sobriety test (FST) is nontestimonial evidence that is not compelled by the State, we hold that the Fifth Amendment does not prohibit admitting such refusal evidence. Accordingly, we conclude that the Court of Appeals erred in holding that admitting evidence of Stalsbroten's refusal to perform an FST violated his right against self-incrimination. Finding no constitutional error in the trial court's admission of this evidence, we affirm Stalsbroten's conviction for drunk driving.

I

On February 14, 1995, Seattle Police Officer Curt Boyle observed Loyd Stalsbroten's vehicle pull out of a parking lot after dark without its headlights on. Stalsbroten drove well below the posted speed limit, drifted between several lanes of traffic, and failed to pull over when Officer Boyle activated his emergency lights. Stalsbroten pulled over only after Boyle sounded his siren.

When Officer Boyle approached the vehicle to speak to the driver, he smelled a "strong odor of intoxicants." Transcript of Proceedings (City's Response to Motion for Discretionary Review) at 41. Stalsbroten's eyes were bloodshot and tearing, and his speech was slurred and lethargic. After exiting the vehicle, Officer Boyle reported that Stalsbroten "had a hard time just standing still" and swayed four or five inches back and forth while standing on flat pavement. Id. at 44. During the course of Officer Boyle's interactions with Stalsbroten at the scene, Stalsbroten introduced himself to the officer approximately 10 times, each time repeating "Hi. My Name is Loyd Stalsbroten, what is yours." Id. at 49-50. Officer Boyle then asked Stalsbroten to perform some FSTs to see if it was safe for him to drive home. Officer Boyle informed him that the tests were voluntary, and Stalsbroten refused to take the tests, responding "No way." Id. at 72-73.

Officer Boyle arrested Stalsbroten for driving under the influence, handcuffed him, and escorted him to the police car. Stalsbroten insisted that he could get into the car without assistance, but he eventually ended up "wedged ... in the car with his feet above his head." Id. at 46. After situating the defendant in the back of his car, Officer Boyle advised him of his Miranda warning and transported him to the police station. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). At the station, Officer Boyle read Stalsbroten the Implied Consent Warnings, and Stalsbroten refused to take a Breathalyzer test.

Before trial, Stalsbroten moved to suppress his refusal to take the FSTs. The municipal court denied this motion, concluding that there was no constitutional bar to admitting evidence of the refusal and that such evidence was relevant to show Stalsbroten's consciousness of his guilt. At trial, Stalsbroten testified that he had consumed three tall glasses of whiskey and 7-Up within roughly two hours before the arrest. A unanimous jury found Stalsbroten guilty of Driving while Intoxicated. Stalsbroten appealed his conviction to the King County Superior Court. The Superior Court affirmed, specifically concluding that there was no error in admitting evidence of Stalsbroten's refusal to take the FSTs. Stalsbroten then sought discretionary review by the Court of Appeals.

The Court of Appeals granted discretionary review solely on the issue of whether Stalsbroten's refusal to perform an FST was inadmissible under state or federal constitutional protections against self-incrimination. City of Seattle v. Stalsbroten, 91 Wash.App. 226, 957 P.2d 260 (1998). The court held that "a suspect's refusal to perform a voluntary FST is protected by constitutional provisions against self-incrimination because the refusal is testimonial in nature." Id. at 228, 957 P.2d 260. According to the Court of Appeals, the trial court erred in not suppressing the evidence of Stalsbroten's refusal. However, the Court of Appeals ultimately concluded that the error was harmless beyond a reasonable doubt due to the "overwhelming untainted evidence of Stalsbroten's guilt." Id. The court therefore affirmed Stalsbroten's conviction.

II

The right against self-incrimination is protected by the Fifth Amendment, which provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. ¹ This right protects a defendant from being compelled to provide evidence of a "testimonial or communicative nature," or from testifying against himself. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). However, the Fifth Amendment does not prevent the admission of physical or real evidence. A state may compel physical or real evidence, but may not compel testimonial evidence. The element of compulsion or involuntariness is central to the right against self-incrimination: a defendant's voluntary production of testimonial evidence is not protected by the Fifth Amendment. South Dakota v. Neville, 459 U.S. 553, 562, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Thus, admitting evidence that a defendant refused to take a FST violates his right against self-incrimination only if (1) the refusal evidence is testimonial and (2) the evidence is impermissibly compelled by the State.

A

As to the first requirement, we conclude that evidence of a defendant's refusal to perform an FST is nontestimonial. Testimonial evidence is a communication that "explicitly or implicitly, relate[s] a factual assertion or disclose[s] information." Pennsylvania v. Muniz, 496 U.S. 582, 594, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (quoting Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1998)). As noted above, the Fifth Amendment only protects testimonial evidence. Accordingly, an accused may not be compelled to reveal, either directly or indirectly, "his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government." Id. at 595, 110 S.Ct. 2638. In contrast, the Fifth Amendment offers no protection against the compulsion to provide blood samples, fingerprints, measurements, voice or writing samples, "to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Schmerber, 384 U.S. at 764, 86 S.Ct. 1826. Nontestimonial evidence is unprotected by the Fifth Amendment.

We have repeatedly held that the performance of an FST is nontestimonial. State v. Smith, 130 Wash.2d 215, 223, 922 P.2d 811 (1996); Heinemann v. Whitman County, 105 Wash.2d 796, 801, 718 P.2d 789 (1986); City of Mercer Island v. Walker, 76 Wash.2d 607, 612-13, 458 P.2d 274 (1969). Field sobriety tests produce only real or physical evidence, and do not communicate testimonial evidence. Walker, 76 Wash.2d at 612-13, 458 P.2d 274. In this way, the performance of an FST is similar to a defendant's appearance at a police lineup or a defendant's other physical actions. Id. Because a defendant's performance of an FST is nontestimonial, Fifth Amendment protections do not apply.

The Court of Appeal in this case acknowledged that the performance of an FST is nontestimonial, but distinguished between a suspect's performance of an FST and a suspect's response to a question about whether he is willing to take the test. City of Seattle v. Stalsbroten, 91 Wash.App. 226, 232, 957 P.2d 260 (1998). According to the court, the question of whether the performance of an FST produces nontestimonial evidence is separate from the question of whether the request to perform an FST produces nontestimonial evidence. Id. The court agreed that the performance of an FST is nontestimonial, but concluded that a question about a suspect's willingness to participate in an FST requires a testimonial response. Id. According to the court, a suspect's refusal to perform an FST communicates to the officer the suspect's implied belief that he or she thinks he or she will fail the test. Id. Given the fact that the refusal communicates a suspect's "perception of intoxication," the court concluded that the refusal to submit to FSTs is testimonial and therefore constitutionally protected. Id. at 235, 957 P.2d 260.

We disagree with this distinction. A suspect's refusal to perform an FST is no more testimonial than the suspect's actual performance of an FST. State v. Hoenscheid, 374 N.W.2d 128 (S.D.1984). Just because refusal evidence has probative value does not mean that such evidence is testimonial. See Welch v. District Court of Vt., 461 F.Supp. 592, 595 (D.Vt.1978) (discussing refusal evidence in the context of Breathalyzer tests) aff'd, 594 F.2d 903 (2d Cir.1979). A refusal to submit to sobriety tests is not a statement communicating testimonial evidence; rather, the refusal "is best described as conduct indicating a consciousness of guilt." Newhouse v. Misterly, 415 F.2d 514, 518 (9th Cir.1969) (discussing refusal evidence in the context of blood alcohol tests). The act of refusal "merely exposes [the defendant] to the drawing of inferences, just as does any other act." State v. Wright, 116 N.M. 832, 835, 867 P.2d 1214, 1216 (Ct.App.1994) (quoting McKay v. Davis, 99 N.M. 29, 31, 653 P.2d 860, 861 (1982)).

The argument that a refusal to take an FST communicates the suspect's belief that the test will produce evidence of his or her guilt confuses...